On June 25, the U.S. Supreme Court upheld President Donald Trump’s travel ban by a vote of 5‑4. The Court held that Trump had the constitutional authority to ban or restrict travel and immigration from seven countries, most of them majority-Muslim. More to the point, the Court held that the president cannot be questioned on his national security decisions, even in light of obvious and egregious evidence of hostility. In so ruling, the Court placed the U.S. among the many other nations worldwide where “national security” is used to quash human rights.
Many Americans received the decision with disgust and shock. While no one doubts the overarching importance of national security, the evidence of anti-Muslim hostility in this case was so plentiful that the Court’s refusal to parse through it more carefully came off as callous and misguided. After all, as the president’s reactions to the decision reflect, the Court’s failure to hold him accountable for his obvious anti-Muslim hatred will only embolden his desire to flaunt the law and exert his executive power.
On the legal analysis, lawyers and legal scholars have disagreed vehemently. One side argues that the copious evidence of anti-Muslim hostility should have limited the deference the Court gave to the president’s travel ban decision. Other scholars have argued that the immigration statute at issue may be flawed, but it mandates the deference that the Court gave to the president. In other words, the Court had no choice but to rule the way it did.
Regardless of whether the Court had a strong legal basis for its ruling, the law as it stands is not acceptable. Its extreme degree of deference is problematic not just because of this president’s tendency to brazenly discriminate against entire classes of people — religious, ethnic and national — but also because of a disturbing trend around the world of governments using security rationales to violate human rights. In particular, the world is replete with examples of governments using “security” to limit even the most basic religious liberty rights of Muslims.
In France, the government limits Muslim women from wearing burqas, or face veils, in public because of concerns about “public order” and national security — it insists on a rule that requires women to show their face in all public places, not just the limited spaces where such exposure is necessary to security (for instance, when the police are questioning a suspect). A few years ago, numerous French towns attempted to limit the burkini, a modest swimsuit worn to the beach by many Muslim women. Even though the swimsuit exposed the woman’s face, the government still insisted that it posed security concerns.
In numerous Central Asian states, the restrictions on Muslim religious expression become even more extreme. Like many countries in the West, these Central Asian regimes see a close relationship between Muslim religiosity and a propensity to violence. To prevent any risk of radicalization, some of these states go so far as to limit the number of mosques in each neighborhood, restrict access to mosques (Tajikistan, for example, prohibits anyone under 18 from participating in public religious activities), and even monitor in-home religious study and discussion.
Even here in the U.S., the New York Police Department just a few years ago instituted a sweeping surveillance program that monitored mosque-goers, Muslim student association meetings and events on college campuses, and even gossip at cafes frequented by Muslim patrons. They did this all in the name of national security.
Governments often get away with this because purported threats to “security” evoke fears and uncertainties among the citizenry, giving governments an excess of discretion to abuse that power. There is a false belief that more security requires less freedom, when in fact the evidence points the other way: Restricting human rights correlates with worsening security. According to a study by the Pew Forum on Religion and Public Life, for example, government restrictions on religious freedom correlate with heightened social hostilities — meaning, where there is more official repression, there is less security and social cohesion.
To achieve both — a robust protection of human rights and a more secure society — the process needs more than extreme deference to the president’s decisions. Instead of accepting broad measures that sweepingly limit human rights merely because they are justified under the rubric of national security, courts should ask whether the purported security risk is real and if there aren’t ways to address the risks without unduly limiting rights. According to one scholar, the president should have to back up his national security assertions with specific findings and provide the public evidence of why the measure he is pushing — in this case, the travel ban — serves our national security interests. Congress should also monitor the implementation of the measures.
This decision has been criticized for many reasons. Among these, perhaps the biggest issue is that it further ensconces the U.S. among the many other governments around the world where security has become a bogeyman, putting human rights at risk.
Asma T. Uddin is senior scholar at the Religious Freedom Center of the Freedom Forum Institute. Her email address is: [email protected].